SENATOR Oelslager

To amend sections 2945.371, 2945.39, and 2945.401, to

1

revive and amend section 2945.38, and to repeal

2

section 2945.38 of the Revised Code as it results

3

from Am. Sub. S.B. 285 of the 121st General

4

Assembly relative to the determination of a

5

defendant's competency to stand trial and whether

6

or not there is a substantial probability that the

7

defendant will become competent to stand trial if

8

provided with a course of treatment.

9

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2945.371, 2945.38, 2945.39, and	10
2945.401 of the Revised Code be amended to read as follows:	11

Sec. 2945.371.  (A) If the issue of a defendant's competence	12
to stand trial is raised or if a defendant enters a plea of not	13
guilty by reason of insanity, the court may order one or more	14
evaluations of the defendant's present mental condition or, in the	15
case of a plea of not guilty by reason of insanity, of the	16
defendant's mental condition at the time of the offense charged.	17
An examiner shall conduct the evaluation.	18

(B) If the court orders more than one evaluation under	19
division (A) of this section, the prosecutor and the defendant may	20
recommend to the court an examiner whom each prefers to perform	21
one of the evaluations. If a defendant enters a plea of not	22
guilty by reason of insanity and if the court does not designate	23
an examiner recommended by the defendant, the court shall inform	24
the defendant that the defendant may have independent expert	25
evaluation and that, if the defendant is unable to obtain	26
independent expert evaluation, it will be obtained for the	27
defendant at public expense if the defendant is indigent.	28

(C) If the court orders an evaluation under division (A) of	29
this section, the defendant shall be available at the times and	30
places established by the examiners who are to conduct the	31
evaluation. The court may order a defendant who has been released	32
on bail or recognizance to submit to an evaluation under this	33
section. If a defendant who has been released on bail or	34
recognizance refuses to submit to a complete evaluation, the court	35
may amend the conditions of bail or recognizance and order the	36
sheriff to take the defendant into custody and deliver the	37
defendant to a center, program, or facility operated or certified	38
by the department of mental health or the department of mental	39
retardation and developmental disabilities where the defendant may	40
be held for evaluation for a reasonable period of time not to	41
exceed twenty days.	42

(D) A defendant who has not been released on bail or	43
recognizance may be evaluated at the defendant's place of	44
detention. Upon the request of the examiner, the court may order	45
the sheriff to transport the defendant to a program or facility	46
operated by the department of mental health or the department of	47
mental retardation and developmental disabilities, where the	48
defendant may be held for evaluation for a reasonable period of	49
time not to exceed twenty days, and to return the defendant to the	50
place of detention after the evaluation. A municipal court may	51
make an order under this division only upon the request of a	52
certified forensic center examiner.	53

(E) If a court orders the evaluation to determine a	54
defendant's mental condition at the time of the offense charged,	55
the court shall inform the examiner of the offense with which the	56
defendant is charged.	57

(F) In conducting an evaluation of a defendant's mental	58
condition at the time of the offense charged, the examiner shall	59
consider all relevant evidence. If the offense charged involves	60
the use of force against another person, the relevant evidence to	61
be considered includes, but is not limited to, any evidence that	62
the defendant suffered, at the time of the commission of the	63
offense, from the "battered woman syndrome."	64

(G) The examiner shall file a written report with the court	65
within thirty days after entry of a court order for evaluation,	66
and the court shall provide copies of the report to the prosecutor	67
and defense counsel. The report shall include all of the	68
following:	69

(1) The examiner's findings;

70

(2) The facts in reasonable detail on which the findings are	71
based;	72

(3) If the evaluation was ordered to determine the	73
defendant's competence to stand trial, all of the following	74
findings or recommendations that are applicable:	75

(a) Whether the defendant is capable of understanding the	76
nature and objective of the proceedings against the defendant or	77
of assisting in the defendant's defense;	78

(b) If the examiner's opinion is that the defendant is	79
incapable of understanding the nature and objective of the	80
proceedings against the defendant or of assisting in the	81
defendant's defense, whether the defendant presently is mentally	82
ill or mentally retarded and, if the examiner's opinion is that	83
the defendant presently is mentally retarded, whether the	84
defendant appears to be a mentally retarded person subject to	85
institutionalization by court order;	86

(c) If the examiner's opinion is that the defendant is	87
incapable of understanding the nature and objective of the	88
proceedings against the defendant or of assisting in the	89
defendant's defense, the examiner's opinion as to the likelihood	90
of the defendant becoming capable of understanding the nature and	91
objective of the proceedings against the defendant or of assisting	92
in the defendant's defense within one year if the defendant is	93
provided with a course of treatment;	94

(d) If the examiner's opinion is that the defendant is	95
incapable of understanding the nature and objective of the	96
proceedings against the defendant or of assisting in the	97
defendant's defense and that the defendant presently is mentally	98
ill or mentally retarded, the examiner's recommendation as to the	99
least restrictive treatment alternative, consistent with the	100
defendant's treatment needs for restoration to competency and with	101
the safety of the community;.	102

(4) If the evaluation was ordered to determine the	103
defendant's mental condition at the time of the offense charged,	104
the examiner's findings as to whether the defendant, at the time	105
of the offense charged, did not know, as a result of a severe	106
mental disease or defect, the wrongfulness of the defendant's acts	107
charged.	108

(H) If the examiner's report filed under division (G) of	109
this section indicates that in the examiner's opinion the	110
defendant is incapable of understanding the nature and objective	111
of the proceedings against the defendant or of assisting in the	112
defendant's defense and that in the examiner's opinion the	113
defendant appears to be a mentally retarded person subject to	114
institutionalization by court order, the court shall order the	115
defendant to undergo a separate mental retardation evaluation	116
conducted by a psychologist designated by the director of mental	117
retardation and developmental disabilities. Divisions (C) to (F)	118
of this section apply in relation to a separate mental retardation	119
evaluation conducted under this division. The psychologist	120
appointed under this division to conduct the separate mental	121
retardation evaluation shall file a written report with the court	122
within thirty days after the entry of the court order requiring	123
the separate mental retardation evaluation, and the court shall	124
provide copies of the report to the prosecutor and defense	125
counsel. The report shall include all of the information	126
described in divisions (G)(1) to (4) of this section. If the	127
court orders a separate mental retardation evaluation of a	128
defendant under this division, the court shall not conduct a	129
hearing under divisions (B) to (H) of section 2945.37 of the	130
Revised Code regarding that defendant until a report of the	131
separate mental retardation evaluation conducted under this	132
division has been filed. Upon the filing of that report, the	133
court shall conduct the hearing within the period of time	134
specified in division (C) of section 2945.37 of the Revised Code.	135

(I) An examiner appointed under divisions (A) and (B) of	136
this section or under division (H) of this section to evaluate a	137
defendant to determine the defendant's competence to stand trial	138
also may be appointed to evaluate a defendant who has entered a	139
plea of not guilty by reason of insanity, but an examiner of that	140
nature shall prepare separate reports on the issue of competence	141
to stand trial and the defense of not guilty by reason of	142
insanity.	143

(J) No statement that a defendant makes in an evaluation or	144
hearing under divisions (A) to (H) of this section relating to the	145
defendant's competence to stand trial or to the defendant's mental	146
condition at the time of the offense charged shall be used against	147
the defendant on the issue of guilt in any criminal action or	148
proceeding, but, in a criminal action or proceeding, the	149
prosecutor or defense counsel may call as a witness any person who	150
evaluated the defendant or prepared a report pursuant to a	151
referral under this section. Neither the appointment nor the	152
testimony of an examiner appointed under this section precludes	153
the prosecutor or defense counsel from calling other witnesses or	154
presenting other evidence on competency or insanity issues.	155

(K) Persons appointed as examiners under divisions (A) and	156
(B) of this section or under division (H) of this section shall be	157
paid a reasonable amount for their services and expenses, as	158
certified by the court. The certified amount shall be paid by the	159
county in the case of county courts and courts of common pleas and	160
by the legislative authority, as defined in section 1901.03 of the	161
Revised Code, in the case of municipal courts.	162

Sec. 2945.38.  (A) If the issue of a defendant's competence	163
to stand trial is raised and if the court finds, upon conducting	164
the hearing provided for in section 2945.37 of the Revised Code,	165
finds that the defendant is competent to stand trial, the	166
defendant shall be proceeded against as provided by law. If the	167
court finds the defendant is found competent to stand trial and	168
the defendant is receiving psychotropic drugs or other medication,	169
the court shallmay authorize the continued administration of the	170
drugs or medication or other appropriate treatment in order to	171
maintain the defendant's competence to stand trial, unless the	172
defendant's attending physician advises the court against	173
continuation of the drugs, other medication, or treatment.	174

(B)(1) If, after taking into consideration all relevant	175
reports, information, and other evidence, the court finds that the	176
defendant is incompetent to stand trial, it shall also make a	177
finding based on the evidence as to whetherand that there is a	178
substantial probability that the defendant will become competent	179
to stand trial within one year, if the defendant is provided with	180
a course of treatment, the court shall order the defendant to	181
undergo treatment. If the defendant has been charged with a felony	182
offense and if, after taking into consideration all relevant	183
reports, information, and other evidence, the court finds that the	184
defendant is incompetent to stand trial, but the court is unable	185
at that time to determine whether there is a substantial	186
probability that the defendant will become competent to stand	187
trial within one year if the defendant is provided with a course	188
of treatment, the court shall order continuing evaluation and	189
treatment of the defendant for a period not to exceed four months	190
to determine whether there is a substantial probability that the	191
defendant will become competent to stand trial within one year if	192
the defendant is provided with a course of treatment.	193

(2) The court order for the defendant to undergo treatment	194
or continuing evaluation and treatment under division (B)(1) of	195
this section shall specify that the treatment or continuing	196
evaluation and treatment shall occur at a facility operated by the	197
department of mental health or the department of mental	198
retardation and developmental disabilities, at a facility	199
certified by either of those departments as being qualified to	200
treat mental illness or mental retardation, at a public or private	201
community mental health or mental retardation facility, or by a	202
psychiatrist or another mental health or mental retardation	203
professional. The order may restrict the defendant's freedom of	204
movement as the court considers necessary. The prosecutor in the	205
defendant's case shall send to the chief clinical officer of the	206
hospital or facility, the managing officer of the institution, the	207
director of the program, or the person to which the defendant is	208
committed copies of relevant police reports and other background	209
information that pertains to the defendant and is available to the	210
prosecutor unless the prosecutor determines that the release of	211
any of the information in the police reports or any of the other	212
background information to unauthorized persons would interfere	213
with the effective prosecution of any person or would create a	214
substantial risk of harm to any person.	215

In determining placement alternatives, the court shall	216
consider the extent to which the person is a danger to the person	217
and to others, the need for security, and the type of crime	218
involved and shall order the least restrictive alternative	219
available that is consistent with public safety and treatment	220
goals. In weighing these factors, the court shall give preference	221
to protecting public safety.	222

(3) If the defendant is found incompetent to stand trial,	223
if the chief clinical officer of the hospital or facility, the	224
managing officer of the institution, the director of the program,	225
or the person to which the defendant is committed for treatment or	226
continuing evaluation and treatment under division (B)(2) of this	227
section determines that medication is necessary to restore the	228
defendant's competency to stand trial, and if the defendant lacks	229
the capacity to give informed consent or refuses medication, the	230
chief clinical officer, managing officer, director, or person to	231
which the defendant is committed for treatment or continuing	232
evaluation and treatment may petition for, and the court may	233
authorize, the involuntary administration of medication.	234

(C) If the court finds that the defendant is incompetent to	235
stand trial and that, even if the defendant is provided with a	236
course of treatment, there is not a substantial probability that	237
the defendant will become competent to stand trial within one	238
year, and it appears to the court, through a review of the report	239
of an examiner under section 2945.371 of the Revised Code or	240
otherwise, that the defendant is mentally ill or mentally retarded	241
shall order the discharge of the defendant, unless upon motion of	242
the prosecutor or on its own motion, the court may causeeither	243
seeks to retain jurisdiction over the defendant pursuant to	244
section 2945.39 of the Revised Code or files an affidavit to be	245
filed in the probate court under section 5122.11 or 5123.71for	246
the civil commitment of the defendant pursuant to Chapter 5122. or	247
5123. of the Revised Code alleging that the defendant is a	248
mentally ill person subject to hospitalization by court order or a	249
mentally retarded person subject to institutionalization by court	250
order, as defined in sections 5122.01 and 5123.01 of the Revised	251
Code. When theIf an affidavit is filed in the probate court, the	252
trial court shall send to the probate court a copycopies of all	253
written reports of the defendant's mental condition that were	254
prepared pursuant to section 2945.371 of the Revised Code.	255

The trial court may issue the temporary order of detention	256
that a probate court may issue under section 5122.11 or 5123.71 of	257
the Revised Code, to remain in effect until the probable cause or	258
initial hearing in the probate court. Further proceedings in the	259
probate court are then civil proceedings governed by Chapter 5122.	260
or 5123. of the Revised Code.	261

The chief clinical officer of the hospital or facility, the	262
managing officer of the institution, the director of the program,	263
or the person to which the defendant is committed or admitted	264
shall send, at least ten days prior to the discharge or	265
immediately upon learning of a change to voluntary status, written	266
notice to the prosecutor of the date on which the defendant will	267
be discharged or has been admitted on voluntary status.	268

(D) If the court finds that the defendant is incompetent to	269
stand trial and it appears to the court, through a review of the	270
report of an examiner or otherwise, that the defendant is mentally	271
ill or mentally retarded, but that there is a substantial	272
probability the defendant will become competent to stand trial	273
within one year if provided a course of treatment, and the offense	274
is one for which the defendant could be incarcerated, if	275
convicted, the court shall order the defendant to undergo	276
treatment at a facility operated by the department of mental	277
health or the department of mental retardation and developmental	278
disabilities, at a facility certified by the appropriate	279
department as qualified to treat mental illness or mental	280
retardation, or at a public or private community mental health or	281
mental retardation facility, or it may order private treatment by	282
a psychiatrist or other mental health or mental retardation	283
professional. The order may restrict the defendant's freedom of	284
movement, as the court considers necessary. In determining	285
placement alternatives, the court shall consider the dangerousness	286
of the defendant to self and others, the need for security, and	287
the type of crime involved and shall order the least restrictive	288
alternative available that is consistent with public safety and	289
treatment goals.	290

(D) No defendant shall be required to undergo treatment,	291
including any continuing evaluation and treatment, under this	292
division (B) of this section for longer than the lesser of fifteen	293
months or one-third of the longest prison term that might	294
whichever of the following periods is applicable:	295

(1) One year, if the most serious offense with which the	296
defendant is charged is one of the following offenses:	297

(a) Aggravated murder, murder, or an offense of violence	298
for which a sentence of death or life imprisonment may be imposed	299
for conviction of;	300

(b) An offense of violence that is a felony or one-third of	301
the longest term of imprisonment that might be imposed for	302
conviction ofof the first or second degree;	303

(c) A conspiracy to commit, an attempt to commit, or	304
complicity in the commission of an offense described in division	305
(D)(1)(a) or (b) of this section if the conspiracy, attempt, or	306
complicity is a felony of the first or second degree.	307

(2) Six months, if the most serious offense with which the	308
defendant is charged is a felony other than a felony described in	309
division (D)(1) of this section;	310

(3) Sixty days, if the most serious offense with which the	311
defendant is charged is a misdemeanor if the defendant is found	312
guilty of the most serious crime with which the defendant was	313
charged at the time of the hearing. No order issued under this	314
division shall remain in effect after the indictment, information,	315
or complaint is dismissed. The court shall notify the prosecutor,	316
defense counsel, and the chief clinical officer of the facility or	317
the managing officer of the institution or facility at which, or	318
person with whom, the defendant was ordered to undergo treatment	319
pursuant to this division whenever an indictment, information, or	320
complaint against a defendant is dismissed and whenever the court	321
revokes an order made under this division. If the maximum time	322
during which an order of the court may be in effect expires, the	323
court, within three days, shall conduct another hearing under	324
section 2945.37 of the Revised Code to determine if the defendant	325
is competent to stand trial, but at the close of such a hearing, a	326
disposition shall be made under division (A) of this section or if	327
the defendant is found incompetent to stand trial, disposition	328
shall be made as under division (C) of this sectionof the first	329
or second degree;	330

(4) Thirty days, if the most serious offense with which the	331
defendant is charged is a misdemeanor of the third or fourth	332
degree or a minor misdemeanor.	333

(E) Any defendant who is committed pursuant to this division	334
section shall not voluntarily admit selfthe defendant or be	335
voluntarily admitted to a hospital or institution pursuant to	336
section 5122.02 of the Revised Code or to an institution pursuant	337
to section, 5122.15, 5123.69, or 5123.76 of the Revised Code.	338

(E)(F) Except as otherwise provided in this division, a	339
defendant who is charged with an offense and is committed to a	340
hospital or other institution by the court under this section	341
shall not be granted unsupervised on-grounds movement, supervised	342
off-grounds movement, or nonsecured status. The court may grant a	343
defendant supervised off-grounds movement to obtain medical	344
treatment or specialized habilitation treatment services if the	345
person who supervises the treatment or the continuing evaluation	346
and treatment of the defendant ordered under division (B)(1) of	347
this section informs the court that the treatment or continuing	348
evaluation and treatment cannot be provided at the hospital or the	349
institution to which the defendant is committed. The chief	350
clinical officer of the hospital or the managing officer of the	351
institution to which the defendant is committed or a designee of	352
either of those persons may grant a defendant movement to a	353
medical facility for an emergency medical situation with	354
appropriate supervision to ensure the safety of the defendant,	355
staff, and community during that emergency medical situation. The	356
chief clinical officer of the hospital or the managing officer of	357
the institution shall notify the court within twenty-four hours of	358
the defendant's movement to the medical facility for an emergency	359
medical situation under this division.	360

(G) The person who supervises the treatment or continuing	361
evaluation and treatment of a defendant ordered to undergo	362
treatment or continuing evaluation and treatment under division	363
(D)(B)(1) of this section shall file a written report with the	364
court and send copies to the prosecutor and defense counsel at the	365
following times:	366

(1) After the first ninety days of treatment and after each	367
one hundred eighty days of treatment thereafter;	368

(2) Whenever the person believes the defendant is competent	369
to stand trial;	370

(3) Whenever the person believes that there is not a	371
substantial probability that the defendant will become competent	372
to stand trial;	373

(4) Fourteencapable of understanding the nature and	374
objective of the proceedings against the defendant or of assisting	375
in the defendant's defense;	376

(2) For a felony offense, fourteen days before expiration	377
of the maximum time an order issued underfor treatment as	378
specified in division (D) of this section may be in effectand	379
fourteen days before the expiration of the maximum time for	380
continuing evaluation and treatment as specified in division	381
(B)(1) of this section, and, for a misdemeanor offense, ten days	382
before the expiration of the maximum time for treatment, as	383
specified in that division.(D) of this section;	384

(3) At a minimum, after each six months of treatment;

385

(4) Whenever the person who supervises the treatment or	386
continuing evaluation and treatment of a defendant ordered under	387
division (B)(1) of this section believes that there is not a	388
substantial probability that the defendant will become capable of	389
understanding the nature and objective of the proceedings against	390
the defendant or of assisting in the defendant's defense even if	391
the defendant is provided with a course of treatment.	392

(H) A report under division (G) of this section shall	393
contain the examiner's findings of the examiner, the facts in	394
reasonable detail on which the findings are based, and the	395
examiner's opinion of the examiner as to the defendant's	396
competence to stand trialcapability of understanding the nature	397
and objective of the proceedings against the defendant or of	398
assisting in the defendant's defense. If, in the examiner finds	399
that the defendant is incompetent to stand trial, the examiner	400
shall state an opinion in the report on the likelihood of the	401
defendant's becoming competent to stand trial within one year	402
examiner's opinion, the defendant remains incapable of	403
understanding the nature and objective of the proceedings against	404
the defendant or of assisting in the defendant's defense and there	405
is a substantial probability that the defendant will become	406
capable of understanding the nature and objective of the	407
proceedings against the defendant or of assisting in the	408
defendant's defense if the defendant is provided with a course of	409
treatment, and the defendant also remains mentally ill or mentally	410
retarded, and if the maximum time for treatment as specified in	411
division (D) of this section has not expired, the report also	412
shall contain the examiner's recommendation as to the least	413
restrictive treatment alternative that is consistent with the	414
defendant's treatment needs for restoration to competency and with	415
the safety of the community. The court shall provide copies of the	416
report to the prosecutor and defense counsel.	417

(F)(I) Within ten days after receipt of a report required by	418
division (E) of this sectionthe treating physician of a mentally	419
ill defendant or the examiner, as defined in division (A)(2)(b) of	420
section 2945.37 of the Revised Code, of a mentally retarded	421
defendant advises that there is not a substantial probability that	422
the defendant will become capable of understanding the nature and	423
objective of the proceedings against the defendant or of assisting	424
in the defendant's defense even if the defendant is provided with	425
a course of treatment, within ten days after the expiration of the	426
maximum time for treatment as specified in division (D) of this	427
section, within ten days after the expiration of the maximum time	428
for continuing evaluation and treatment as specified in division	429
(B)(1) of this section, within thirty days after a defendant's	430
request for a hearing that is made after six months of treatment,	431
or within thirty days after being advised by the treating	432
physician or examiner that the defendant is competent to stand	433
trial, whichever is the earliest, the court shall hold aconduct	434
another hearing on the issue of the competence ofto determine if	435
the defendant is competent to stand trial, as provided in section	436
2945.37 of the Revised Code.and shall do whichever of the	437
following is applicable:	438

(1) If at the conclusion of the hearing the court finds	439
that the defendant is competent to stand trial, the defendant	440
shall be proceeded against as provided by law. If	441

(a) If the court finds that the defendant is incompetent to	442
stand trial, but that there is a substantial probability that the	443
defendant will become competent to stand trial before expiration	444
ofif the defendant is provided with a course of treatment, and	445
the maximum time limit specified for treatment underas specified	446
in division (D) of this section has not expired, the court may	447
modify or continue in effect orders made at a previous hearing,	448
still subject to the maximum time that orders may be in effect, as	449
originally established under division (D) of this section. If,	450
after consideration of the examiner's recommendation, shall order	451
that treatment be continued, may change the facility or program at	452
which the treatment is to be continued, and shall specify whether	453
the treatment is to be continued at the same or a different	454
facility or program.	455

(3) If the court finds that the defendant is incompetent to	456
stand trial, if the defendant is charged with an offense listed in	457
division (D)(1) of this section, and if the court finds that there	458
is not a substantial probability that the defendant will become	459
competent to stand trial withineven if the defendant is provided	460
with a course of treatment, or if the maximum time that orders may	461
be in effect, as originally established underfor treatment	462
relative to that offense as specified in division (D) of this	463
section, the court shall make a disposition as under division (C)	464
of this section.	465

(G) Thehas expired, further proceedings shall be as	466
provided in sections 2945.39, 2945.401, and 2945.402 of the	467
Revised Code.	468

(4) If the court finds that the defendant is incompetent to	469
stand trial, if the most serious offense with which the defendant	470
is charged is a misdemeanor or a felony other than a felony listed	471
in division (D)(1) of this section, and if the court finds that	472
there is not a substantial probability that the defendant will	473
become competent to stand trial even if the defendant is provided	474
with a course of treatment, or if the maximum time for treatment	475
relative to that offense as specified in division (D) of this	476
section has expired, the court shall dismiss the indictment,	477
information, or complaint against athe defendant finally found	478
incompetent to stand trial under division (C), (D), or (F) of this	479
section or whenever the prosecutor notifies the court the	480
prosecutor does not intend to prosecute the charges specified in	481
the indictment, information, or complaint. A	482

(H) A dismissal under this division (G) of this section is	483
not a bar to further criminal proceedingsprosecution based on the	484
same conduct unless all of the following conditions are present:	485

(1) After a finding under division (C), (D), or (F) of this	486
section that the defendant was incompetent to stand trial, an	487
affidavit alleging that the defendant was mentally ill and subject	488
to hospitalization by court order or mentally retarded and subject	489
to institutionalization by court order was filed and the defendant	490
either was found mentally ill or mentally retarded and subject to	491
hospitalization or institutionalization by court order, but was	492
later released, or was not so found. Whenever the issue of	493
competence to stand trial is raised, but no finding under division	494
(C), (D), or (F) of this section occurs because, before such a	495
finding, the court dismisses the indictment, information, or	496
complaint upon notice from the prosecutor that the prosecutor does	497
not intend to prosecute the charges, this division does not bar	498
further criminal proceedings based on the same conduct, but	499
divisions (H)(2), (3), and (4) of this section may bar further	500
proceedings, if the conditions they specify are not present.	501

(2) The time the defendant has been involuntarily detained	502
for examination or treatment under Chapter 5122. or 5123. of the	503
Revised Code pursuant to the filing of an affidavit under division	504
(C), (D), or (F) of this section and under this section and	505
sections 2945.37 and 2945.371 of the Revised Code does not exceed	506
one-third of the maximum prison term or term of imprisonment the	507
defendant might have received if convicted of the most serious	508
charge that was dismissed.	509

(3) Further criminal proceedings are not barred under	510
sections 2945.71 to 2945.73 of the Revised Code.	511

(4) The period of limitation for the offense committed has	512
not expired under section 2901.13 of the Revised Code, computed	513
without regard to division (H) of that section. The court shall	514
discharge the defendant unless the court or prosecutor files an	515
affidavit in probate court for civil commitment pursuant to	516
Chapter 5122. or 5123. of the Revised Code. If an affidavit for	517
civil commitment is filed, the court may detain the defendant for	518
ten days pending civil commitment. All of the following	519
provisions apply to persons charged with a misdemeanor or a felony	520
other than a felony listed in division (D)(1) of this section who	521
are committed by the probate court subsequent to the court's or	522
prosecutor's filing of an affidavit for civil commitment under	523
authority of this division:	524

(a) The chief clinical officer of the hospital or facility,	525
the managing officer of the institution, the director of the	526
program, or the person to which the defendant is committed or	527
admitted shall do all of the following:	528

(i) Notify the prosecutor, in writing, of the discharge of	529
the defendant, send the notice at least ten days prior to the	530
discharge unless the discharge is by the probate court, and state	531
in the notice the date on which the defendant will be discharged;	532

(ii) Notify the prosecutor, in writing, when the defendant	533
is absent without leave or is granted unsupervised, off-grounds	534
movement, and send this notice promptly after the discovery of the	535
absence without leave or prior to the granting of the	536
unsupervised, off-grounds movement, whichever is applicable;	537

(iii) Notify the prosecutor, in writing, of the change of	538
the defendant's commitment or admission to voluntary status, send	539
the notice promptly upon learning of the change to voluntary	540
status, and state in the notice the date on which the defendant	541
was committed or admitted on a voluntary status.	542

(b) Upon receiving notice that the defendant will be	543
granted unsupervised, off-grounds movement, the prosecutor either	544
shall re-indict the defendant or promptly notify the court that	545
the prosecutor does not intend to prosecute the charges against	546
the defendant.	547

(I)(J) If a defendant is convicted of a crime and sentenced	548
to a jail or workhouse, the defendant's sentence shall be reduced	549
by the total number of days the defendant is confined for	550
examinationevaluation to determine the defendant's competence to	551
stand trial or treatment under this section and sections 2945.37	552
and 2945.371 of the Revised Code or by the total number of days	553
the defendant is confined for evaluation to determine the	554
defendant's mental condition at the time of the offense charged.	555

(J) No statement made by a defendant in an examination or	556
hearing relating to the defendant's competence to stand trial	557
shall be used in evidence against the defendant on the issue of	558
guilt in any criminal action.	559

(K) Each court of common pleas and municipal court shall	560
designate a permanent court officer or employee to file affidavits	561
under division (C) of this section and section 2945.40 of the	562
Revised Code.	563

Sec. 2945.39.  (A) If a defendant who is charged with an	564
offense described in division (C)(D)(1) of section 2945.38 of the	565
Revised Code is found incompetent to stand trial, after the	566
expiration of the maximum time for treatment as specified in	567
division (C)(D) of that section or after the court finds that	568
there is not a substantial probability that the defendant will	569
become competent to stand trial even if the defendant is provided	570
with a course of treatment, one of the following applies:	571

(1) The court or the prosecutor may file an affidavit in	572
probate court for civil commitment of the defendant in the manner	573
provided in Chapter 5122. or 5123. of the Revised Code. If the	574
court or prosecutor files an affidavit for civil commitment, the	575
court may detain the defendant for ten days pending civil	576
commitment. If the probate court commits the defendant subsequent	577
to the court's or prosecutor's filing of an affidavit for civil	578
commitment, the chief clinical officer of the hospital or	579
facility, the managing officer of the institution, the director of	580
the program, or the person to which the defendant is committed or	581
admitted shall send to the prosecutor the notices described in	582
divisions (H)(I)(4)(a)(i) to (iii) of section 2945.38 of the	583
Revised Code within the periods of time and under the	584
circumstances specified in those divisions.	585

(2) On the motion of the prosecutor or on its own motion,	586
the court may retain jurisdiction over the defendant if, at a	587
hearing, the court finds both of the following by clear and	588
convincing evidence:	589

(a) The defendant committed the offense with which the	590
defendant is charged.	591

(b) The defendant is a mentally ill person subject to	592
hospitalization by court order or a mentally retarded person	593
subject to institutionalization by court order.	594

(B) In making its determination under division (A)(2) of	595
this section as to whether to retain jurisdiction over the	596
defendant, the court may consider all relevant evidence,	597
including, but not limited to, any relevant psychiatric,	598
psychological, or medical testimony or reports, the acts	599
constituting the offense charged, and any history of the defendant	600
that is relevant to the defendant's ability to conform to the law.	601

(C) If the court conducts a hearing as described in division	602
(A)(2) of this section and if the court does not make both	603
findings described in divisions (A)(2)(a) and (b) of this section	604
by clear and convincing evidence, the court shall dismiss the	605
indictment, information, or complaint against the defendant. Upon	606
the dismissal, the court shall discharge the defendant unless the	607
court or prosecutor files an affidavit in probate court for civil	608
commitment of the defendant pursuant to chapterChapter 5122. or	609
5123. of the Revised Code. If the court or prosecutor files an	610
affidavit for civil commitment, the court may order that the	611
defendant be detained for up to ten days pending the civil	612
commitment. If the probate court commits the defendant subsequent	613
to the court's or prosecutor's filing of an affidavit for civil	614
commitment, the chief clinical officer of the hospital or	615
facility, the managing officer of the institution, the director of	616
the program, or the person to which the defendant is committed or	617
admitted shall send to the prosecutor the notices described in	618
divisions (H)(I)(4)(a)(i) to (iii) of section 2945.38 of the	619
Revised Code within the periods of time and under the	620
circumstances specified in those divisions. A dismissal of	621
charges under this division is not a bar to further criminal	622
proceedings based on the same conduct.	623

(D)(1) If the court conducts a hearing as described in	624
division (A)(2) of this section and if the court makes the	625
findings described in divisions (A)(2)(a) and (b) of this section	626
by clear and convincing evidence, the court shall commit the	627
defendant to a hospital operated by the department of mental	628
health, a facility operated by the department of mental	629
retardation and developmental disabilities, or another medical or	630
psychiatric facility, as appropriate. In determining the place	631
and nature of the commitment, the court shall order the least	632
restrictive commitment alternative available that is consistent	633
with public safety and the welfare of the defendant. In weighing	634
these factors, the court shall give preference to protecting	635
public safety.	636

(2) If a court makes a commitment of a defendant under	637
division (D)(1) of this section, the prosecutor shall send to the	638
place of commitment all reports of the defendant's current mental	639
condition and, except as otherwise provided in this division, any	640
other relevant information, including, but not limited to, a	641
transcript of the hearing held pursuant to division (A)(2) of this	642
section, copies of relevant police reports, and copies of any	643
prior arrest and conviction records that pertain to the defendant	644
and that the prosecutor possesses. The prosecutor shall send the	645
reports of the defendant's current mental condition in every case	646
of commitment, and, unless the prosecutor determines that the	647
release of any of the other relevant information to unauthorized	648
persons would interfere with the effective prosecution of any	649
person or would create a substantial risk of harm to any person,	650
the prosecutor also shall send the other relevant information.	651
Upon admission of a defendant committed under division (D)(1) of	652
this section, the place of commitment shall send to the board of	653
alcohol, drug addiction, and mental health services or the	654
community mental health board serving the county in which the	655
charges against the defendant were filed a copy of all reports of	656
the defendant's current mental condition and a copy of the other	657
relevant information provided by the prosecutor under this	658
division, including, if provided, a transcript of the hearing held	659
pursuant to division (A)(2) of this section, the relevant police	660
reports, and the prior arrest and conviction records that pertain	661
to the defendant and that the prosecutor possesses.	662

(3) If a court makes a commitment under division (D)(1) of	663
this section, all further proceedings shall be in accordance with	664
sections 2945.401 and 2945.402 of the Revised Code.	665

Sec. 2945.401.  (A) A defendant found incompetent to stand	666
trial and committed pursuant to section 2945.39 of the Revised	667
Code or a person found not guilty by reason of insanity and	668
committed pursuant to section 2945.40 of the Revised Code shall	669
remain subject to the jurisdiction of the trial court pursuant to	670
that commitment, and to the provisions of this section, until the	671
final termination of the commitment as described in division	672
(J)(1) of this section. If the jurisdiction is terminated under	673
this division because of the final termination of the commitment	674
resulting from the expiration of the maximum prison term or term	675
of imprisonment described in division (J)(1)(b) of this section,	676
the court or prosecutor may file an affidavit for the civil	677
commitment of the defendant or person pursuant to Chapter 5122. or	678
5123. of the Revised Code.	679

(B) A hearing conducted under any provision of sections	680
2945.37 to 2945.402 of the Revised Code shall not be conducted in	681
accordance with Chapters 5122. and 5123. of the Revised Code. Any	682
person who is committed pursuant to section 2945.39 or 2945.40 of	683
the Revised Code shall not voluntarily admit the person or be	684
voluntarily admitted to a hospital or institution pursuant to	685
section 5122.02, 5122.15, 5123.69, or 5123.76 of the Revised Code.	686
All other provisions of Chapters 5122. and 5123. of the Revised	687
Code regarding hospitalization or institutionalization shall apply	688
to the extent they are not in conflict with this chapter. A	689
commitment under section 2945.39 or 2945.40 of the Revised Code	690
shall not be terminated and the conditions of the commitment shall	691
not be changed except as otherwise provided in division (D)(2) of	692
this section with respect to a mentally retarded person subject to	693
institutionalization by court order or except by order of the	694
trial court.	695

(C) The hospital, facility, or program to which a defendant	696
or person has been committed under section 2945.39 or 2945.40 of	697
the Revised Code shall report in writing to the trial court, at	698
the times specified in this division, as to whether the defendant	699
or person remains a mentally ill person subject to hospitalization	700
by court order or a mentally retarded person subject to	701
institutionalization by court order and, in the case of a	702
defendant committed under section 2945.39 of the Revised Code, as	703
to whether the defendant remains incompetent to stand trial. The	704
hospital, facility, or program shall make the reports after the	705
initial six months of treatment and every two years after the	706
initial report is made. The trial court shall provide copies of	707
the reports to the prosecutor and to the counsel for the defendant	708
or person. Within thirty days after its receipt pursuant to this	709
division of a report from a hospital, facility, or program, the	710
trial court shall hold a hearing on the continued commitment of	711
the defendant or person or on any changes in the conditions of the	712
commitment of the defendant or person. The defendant or person	713
may request a change in the conditions of confinement, and the	714
trial court shall conduct a hearing on that request if six months	715
or more have elapsed since the most recent hearing was conducted	716
under this section.	717

(D)(1) Except as otherwise provided in division (D)(2) of	718
this section, when a defendant or person has been committed under	719
section 2945.39 or 2945.40 of the Revised Code, at any time after	720
evaluating the risks to public safety and the welfare of the	721
defendant or person, the chief clinical officer of the hospital,	722
facility, or program to which the defendant or person is committed	723
may recommend a termination of the defendant's or person's	724
commitment or a change in the conditions of the defendant's or	725
person's commitment.	726

Except as otherwise provided in division (D)(2) of this	727
section, if the chief clinical officer recommends on-grounds	728
unsupervised movement, off-grounds supervised movement, or	729
nonsecured status for the defendant or person or termination of	730
the defendant's or person's commitment, the following provisions	731
apply:	732

(a) If the chief clinical officer recommends on-grounds	733
unsupervised movement or off-grounds supervised movement, the	734
chief clinical officer shall file with the trial court an	735
application for approval of the movement and shall send a copy of	736
the application to the prosecutor. Within fifteen days after	737
receiving the application, the prosecutor may request a hearing on	738
the application and, if a hearing is requested, shall so inform	739
the chief clinical officer. If the prosecutor does not request a	740
hearing within the fifteen-day period, the trial court shall	741
approve the application by entering its order approving the	742
requested movement or, within five days after the expiration of	743
the fifteen-day period, shall set a date for a hearing on the	744
application. If the prosecutor requests a hearing on the	745
application within the fifteen-day period, the trial court shall	746
hold a hearing on the application within thirty days after the	747
hearing is requested. If the trial court, within five days after	748
the expiration of the fifteen-day period, sets a date for a	749
hearing on the application, the trial court shall hold the hearing	750
within thirty days after setting the hearing date. At least	751
fifteen days before any hearing is held under this division, the	752
trial court shall give the prosecutor written notice of the date,	753
time, and place of the hearing. At the conclusion of each hearing	754
conducted under this division, the trial court either shall	755
approve or disapprove the application and shall enter its order	756
accordingly.	757

(b) If the chief clinical officer recommends termination of	758
the defendant's or person's commitment at any time or if the chief	759
clinical officer recommends the first of any nonsecured status for	760
the defendant or person, the chief clinical officer shall send	761
written notice of this recommendation to the trial court and to	762
the local forensic center. The local forensic center shall	763
evaluate the committed defendant or person and, within thirty days	764
after its receipt of the written notice, shall submit to the trial	765
court and the chief clinical officer a written report of the	766
evaluation. The trial court shall provide a copy of the chief	767
clinical officer's written notice and of the local forensic	768
center's written report to the prosecutor and to the counsel for	769
the defendant or person. Upon the local forensic center's	770
submission of the report to the trial court and the chief clinical	771
officer, all of the following apply:	772

(i) If the forensic center disagrees with the recommendation	773
of the chief clinical officer, it shall inform the chief clinical	774
officer and the trial court of its decision and the reasons for	775
the decision. The chief clinical officer, after consideration of	776
the forensic center's decision, shall either withdraw, proceed	777
with, or modify and proceed with the recommendation. If the chief	778
clinical officer proceeds with, or modifies and proceeds with, the	779
recommendation, the chief clinical officer shall proceed in	780
accordance with division (D)(1)(b)(iii) of this section.	781

(ii) If the forensic center agrees with the recommendation	782
of the chief clinical officer, it shall inform the chief clinical	783
officer and the trial court of its decision and the reasons for	784
the decision, and the chief clinical officer shall proceed in	785
accordance with division (D)(1)(b)(iii) of this section.	786

(iii) If the forensic center disagrees with the	787
recommendation of the chief clinical officer and the chief	788
clinical officer proceeds with, or modifies and proceeds with, the	789
recommendation or if the forensic center agrees with the	790
recommendation of the chief clinical officer, the chief clinical	791
officer shall work with the board of alcohol, drug addiction, and	792
mental health services or community mental health board serving	793
the area, as appropriate, to develop a plan to implement the	794
recommendation. If the defendant or person is on medication, the	795
plan shall include, but shall not be limited to, a system to	796
monitor the defendant's or person's compliance with the prescribed	797
medication treatment plan. The system shall include a schedule	798
that clearly states when the defendant or person shall report for	799
a medication compliance check. The medication compliance checks	800
shall be based upon the effective duration of the prescribed	801
medication, taking into account the route by which it is taken,	802
and shall be scheduled at intervals sufficiently close together to	803
detect a potential increase in mental illness symptoms that the	804
medication is intended to prevent.	805

The chief clinical officer, after consultation with the board	806
of alcohol, drug addiction, and mental health services or the	807
community mental health board serving the area, shall send the	808
recommendation and plan developed under division (D)(1)(b)(iii) of	809
this section, in writing, to the trial court, the prosecutor and	810
the counsel for the committed defendant or person. The trial	811
court shall conduct a hearing on the recommendation and plan	812
developed under division (D)(1)(b)(iii) of this section. Divisions	813
(D)(1)(c) and (d) and (E) to (J) of this section apply regarding	814
the hearing.	815

(c) If the chief clinical officer's recommendation is for	816
nonsecured status or termination of commitment, the prosecutor may	817
obtain an independent expert evaluation of the defendant's or	818
person's mental condition, and the trial court may continue the	819
hearing on the recommendation for a period of not more than thirty	820
days to permit time for the evaluation.	821

The prosecutor may introduce the evaluation report or present	822
other evidence at the hearing in accordance with the Rules of	823
Evidence.	824

(d) The trial court shall schedule the hearing on a chief	825
clinical officer's recommendation for nonsecured status or	826
termination of commitment and shall give reasonable notice to the	827
prosecutor and the counsel for the defendant or person. Unless	828
continued for independent evaluation at the prosecutor's request	829
or for other good cause, the hearing shall be held within thirty	830
days after the trial court's receipt of the recommendation and	831
plan.	832

(2)(a) Division (D)(1) of this section does not apply to	833
on-grounds unsupervised movement of a defendant or person who has	834
been committed under section 2945.39 or 2945.40 of the Revised	835
Code, who is a mentally retarded person subject to	836
institutionalization by court order, and who is being provided	837
residential habilitation, care, and treatment in a facility	838
operated by the department of mental retardation and developmental	839
disabilities.	840

(b) If, pursuant to section 2945.39 of the Revised Code, the	841
trial court commits a defendant who is found incompetent to stand	842
trial and who is a mentally retarded person subject to	843
institutionalization by court order, if the defendant is being	844
provided residential habilitation, care, and treatment in a	845
facility operated by the department of mental retardation and	846
developmental disabilities, if an individual who is conducting a	847
survey for the department of health to determine the facility's	848
compliance with the certification requirements of the medicaid	849
program under chapterChapter 5111. of the Revised Code and Title	850
XIX of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.A.	851
301, as amended, cites the defendant's receipt of the residential	852
habilitation, care, and treatment in the facility as being	853
inappropriate under the certification requirements, if the	854
defendant's receipt of the residential habilitation, care, and	855
treatment in the facility potentially jeopardizes the facility's	856
continued receipt of federal medicaid moneys, and if as a result	857
of the citation the chief clinical officer of the facility	858
determines that the conditions of the defendant's commitment	859
should be changed, the department of mental retardation and	860
developmental disabilities may cause the defendant to be removed	861
from the particular facility and, after evaluating the risks to	862
public safety and the welfare of the defendant and after	863
determining whether another type of placement is consistent with	864
the certification requirements, may place the defendant in another	865
facility that the department selects as an appropriate facility	866
for the defendant's continued receipt of residential habilitation,	867
care, and treatment and that is a no less secure setting than the	868
facility in which the defendant had been placed at the time of the	869
citation. Within three days after the defendant's removal and	870
alternative placement under the circumstances described in	871
division (D)(2)(b) of this section, the department of mental	872
retardation and developmental disabilities shall notify the trial	873
court and the prosecutor in writing of the removal and alternative	874
placement.	875

The trial court shall set a date for a hearing on the removal	876
and alternative placement, and the hearing shall be held within	877
twenty-one days after the trial court's receipt of the notice from	878
the department of mental retardation and developmental	879
disabilities. At least ten-daysten days before the hearing is	880
held, the trial court shall give the prosecutor, the department of	881
mental retardation and developmental disabilities, and the counsel	882
for the defendant written notice of the date, time, and place of	883
the hearing. At the hearing, the trial court shall consider the	884
citation issued by the individual who conducted the survey for the	885
department of health to be prima-facie evidence of the fact that	886
the defendant's commitment to the particular facility was	887
inappropriate under the certification requirements of the medicaid	888
program under Chapter 5111. of the Revised Code and Title XIX of	889
the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.A. 301,	890
as amended, and potentially jeopardizes the particular facility's	891
continued receipt of federal medicaid moneys. At the conclusion	892
of the hearing, the trial court may approve or disapprove the	893
defendant's removal and alternative placement. If the trial court	894
approves the defendant's removal and alternative placement, the	895
department of mental retardation and developmental disabilities	896
may continue the defendant's alternative placement. If the trial	897
court disapproves the defendant's removal and alternative	898
placement, it shall enter an order modifying the defendant's	899
removal and alternative placement, but that order shall not	900
require the department of mental retardation and developmental	901
disabilities to replace the defendant for purposes of continued	902
residential habilitation, care, and treatment in the facility	903
associated with the citation issued by the individual who	904
conducted the survey for the department of health.	905

(E) In making a determination under this section regarding	906
nonsecured status or termination of commitment, the trial court	907
shall consider all relevant factors, including, but not limited	908
to, all of the following:	909

(1) Whether, in the trial court's view, the defendant or	910
person currently represents a substantial risk of physical harm to	911
the defendant or person or others;	912

(2) Psychiatric and medical testimony as to the current	913
mental and physical condition of the defendant or person;	914

(3) Whether the defendant or person has insight into the	915
dependant's or person's condition so that the defendant or person	916
will continue treatment as prescribed or seek professional	917
assistance as needed;	918

(4) The grounds upon which the state relies for the proposed	919
commitment;	920

(5) Any past history that is relevant to establish the	921
defendant's or person's degree of conformity to the laws, rules,	922
regulations, and values of society;	923

(6) If there is evidence that the defendant's or person's	924
mental illness is in a state of remission, the medically suggested	925
cause and degree of the remission and the probability that the	926
defendant or person will continue treatment to maintain the	927
remissive state of the defendant's or person's illness should the	928
defendant's or person's commitment conditions be altered.	929

(F) At any hearing held pursuant to division (C) or (D)(1)	930
or (2) of this section, the defendant or the person shall have all	931
the rights of a defendant or person at a commitment hearing as	932
described in section 2945.40 of the Revised Code.	933

(G) In a hearing held pursuant to division (C) or (D)(1) of	934
this section, the prosecutor has the burden of proof as follows:	935

(1) For a recommendation of termination of commitment, to	936
show by clear and convincing evidence that the defendant or person	937
remains a mentally ill person subject to hospitalization by court	938
order or a mentally retarded person subject to	939
institutionalization by court order;	940

(2) For a recommendation for a change in the conditions of	941
the commitment to a less restrictive status, to show by clear and	942
convincing evidence that the proposed change represents a threat	943
to public safety or a threat to the safety of any person.	944

(H) In a hearing held pursuant to division (C) or (D)(1) or	945
(2) of this section, the prosecutor shall represent the state or	946
the public interest.	947

(I) At the conclusion of a hearing conducted under division	948
(D)(1) of this section regarding a recommendation from the chief	949
clinical officer of a hospital, program, or facility, the trial	950
court may approve, disapprove, or modify the recommendation and	951
shall enter an order accordingly.	952

(J)(1) A defendant or person who has been committed pursuant	953
to section 2945.39 or 2945.40 of the Revised Code continues to be	954
under the jurisdiction of the trial court until the final	955
termination of the commitment. For purposes of division (J) of	956
this section, the final termination of a commitment occurs upon	957
the earlier of one of the following:	958

(a) The defendant or person no longer is a mentally ill	959
person subject to hospitalization by court order or a mentally	960
retarded person subject to institutionalization by court order, as	961
determined by the trial court;	962

(b) The expiration of the maximum prison term or term of	963
imprisonment that the defendant or person could have received if	964
the defendant or person had been convicted of the most serious	965
offense with which the defendant or person is charged or in	966
relation to which the defendant or person was found not guilty by	967
reason of insanity;	968

(c) The trial court enters an order terminating the	969
commitment under the circumstances described in division	970
(J)(2)(a)(ii) of this section.	971

(2)(a) If a defendant is found incompetent to stand trial	972
and committed pursuant to section 2945.39 of the Revised Code, if	973
neither of the circumstances described in divisions (J)(1)(a) and	974
(b) of this section applies to that defendant, and if a report	975
filed with the trial court pursuant to division (C) of this	976
section indicates that the defendant presently is competent to	977
stand trial or if, at any other time during the period of the	978
defendant's commitment, the prosecutor, the counsel for the	979
defendant, or the chief clinical officer of the hospital,	980
facility, or program to which the defendant is committed files an	981
application with the trial court alleging that the defendant	982
presently is competent to stand trial and requesting a hearing on	983
the competency issue or the trial court otherwise has reasonable	984
cause to believe that the defendant presently is competent to	985
stand trial and determines on its own motion to hold a hearing on	986
the competency issue, the trial court shall schedule a hearing on	987
the competency of the defendant to stand trial, shall give the	988
prosecutor, the counsel for the defendant, and the chief clinical	989
officer notice of the date, time, and place of the hearing at	990
least fifteen days before the hearing, and shall conduct the	991
hearing within thirty days of the filing of the application or of	992
its own motion. If, at the conclusion of the hearing, the trial	993
court determines that the defendant presently is capable of	994
understanding the nature and objective of the proceedings against	995
the defendant and of assisting in the defendant's defense, the	996
trial court shall order that the defendant is competent to stand	997
trial and shall be proceeded against as provided by law with	998
respect to the applicable offenses described in division (C)(D)(1)	999
of section 2945.38 of the Revised Code and shall enter whichever	1000
of the following additional orders is appropriate:	1001

(i) If the trial court determines that the defendant remains	1002
a mentally ill person subject to hospitalization by court order or	1003
a mentally retarded person subject to institutionalization by	1004
court order, the trial court shall order that the defendant's	1005
commitment to the hospital, facility, or program be continued	1006
during the pendency of the trial on the applicable offenses	1007
described in division (C)(D)(1) of section 2945.38 of the Revised	1008
Code.	1009

(ii) If the trial court determines that the defendant no	1010
longer is a mentally ill person subject to hospitalization by	1011
court order or a mentally retarded person subject to	1012
institutionalization by court order, the trial court shall order	1013
that the defendant's commitment to the hospital, facility, or	1014
program shall not be continued during the pendency of the trial on	1015
the applicable offenses described in division (C)(D)(1) of section	1016
2945.38 of the Revised Code. This order shall be a final	1017
termination of the commitment for purposes of division (J)(1)(c)	1018
of this section.	1019

(b) If, at the conclusion of the hearing described in	1020
division (J)(2)(a) of this section, the trial court determines	1021
that the defendant remains incapable of understanding the nature	1022
and objective of the proceedings against the defendant or of	1023
assisting in the defendant's defense, the trial court shall order	1024
that the defendant continues to be incompetent to stand trial,	1025
that the defendant's commitment to the hospital, facility, or	1026
program shall be continued, and that the defendant remains subject	1027
to the jurisdiction of the trial court pursuant to that	1028
commitment, and to the provisions of this section, until the final	1029
termination of the commitment as described in division (J)(1) of	1030
this section.	1031

Section 2. That existing sections 2945.371, 2945.39, and	1032
2945.401 and section 2945.38 of the Revised Code as it results	1033
from Am. Sub. S.B. 285 of the 121st General Assembly are hereby	1034
repealed.	1035

Section 3. This act presents section 2945.38 of the Revised	1036
Code as it existed prior to its amendment by Am. Sub. S.B. 285 of	1037
the 121st General Assembly. The revived version of that section	1038
supersedes the version of that section repealed by Section 2 of	1039
this act and omits and repeals all changes made to that section by	1040
Am. Sub. S.B. 285 of the 121st General Assembly. The omission and	1041
repeal of those changes is not intended to have any substantive	1042
effect and is intended to present in this act the version of	1043
section 2945.38 of the Revised Code that is currently effective.	1044
The repeal of section 2945.38 of the Revised Code by Section 2 of	1045
this act is to give effect to the holding of the Ohio Supreme	1046
Court in State v. Sullivan (2001), 90 Ohio St.3d 502, that section	1047
2945.38 of the Revised Code, as amended by Am. Sub. S.B. 285 of	1048
the 121st General Assembly, is unconstitutional.	1049